Bill Start

Amended
IN
Senate
April 09, 2018

CALIFORNIA LEGISLATURE—
2017–2018 REGULAR SESSION

Senate Bill

No. 1144

Introduced by Senator Dodd

February 14, 2018

An act to amend Sections 42400.7, 42402, 42403, and 42405.5 of, and to add Section 42402.7 to, the Health and Safety Code, relating to nonvehicular air pollution. Section 19871.3 of the Government Code, relating to public employment.

LEGISLATIVE COUNSEL'S DIGEST

Existing law generally grants to state officers and employees who are members of the Public Employees’ Retirement System or the State Teachers’ Retirement System, among others, a right to industrial disability leave, as defined. Existing law also grants an employee who is a member of State Bargaining Unit 8 and is temporarily disabled in the course of state employment for more than 22 days an extended industrial disability leave benefit based on his or her net salary, as defined. Existing law authorizes the employee to receive this benefit for a period not to exceed 52 weeks after the date of injury or until the date the injury is declared permanent, whichever is earlier. Existing law also authorizes an eligible employee whose injuries are burn-related to receive that benefit for up to 156 weeks.

This bill would delete the above requirement that an employee of State Bargaining Unit 8 be temporarily disabled for a period that exceeds 22 consecutive days to be entitled to the enhanced industrial disability leave benefit. The bill would also include within this benefit any salary increases that the employee would have received during his or her leave. The bill would revise the above condition concerning an injury or illness being declared permanent, to include that it also be declared stationary.

(1)Existing law generally designates air pollution control and air quality management districts with the primary responsibility for the control of air pollution from all sources other than vehicular sources. Existing law establishes maximum criminal and civil penalties for any person, as defined, for violations of air pollution laws from nonvehicular sources. Existing law generally establishes the maximum criminal and civil penalties at $5,000, annually adjusted based on the California Consumer Price Index.

This bill would establish additional civil penalties and fines on specified petroleum refineries, petrochemical plants, and fossil-fuel-burning, electricity-generating power plants that emit an air contaminant in violation of specified rules, regulations, emissions limitations, permits, or orders of a district or district
hearing board and when the violation presents a serious threat to the health or welfare of the public. The bill also would make various conforming changes. By adding to the duties of air districts, this bill would impose a state-mandated local program.

(2)The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Digest Key

Bill Text

The people of the State of California do enact as follows:

SECTION 1.

Section 19871.3 of the Government Code is amended to read:

19871.3.

(a) If an employee who is a member of State Bargaining Unit 8 is temporarily disabled by illness or injury arising out of and in the course of state employment for a period that exceeds 22 consecutive days, employment, he or she shall be entitled to receive the an enhanced industrial disability leave benefit provided by this section.
benefit.

(b)(1)Except as provided in paragraph (2), an employee described by subdivision (a) shall receive an The enhanced industrial disability leave benefit in an amount that is the shall be equivalent of
to the injured employee’s net salary on the date of the occurrence of the injury or illness or the date the injury or illness is declared, whichever is greater. salary, including any increases the employee would have received during the leave.An employee may receive this benefit for a period The benefit may not to
exceed 52 weeks after the date of the occurrence of the injury or illness or until the date the injury or illness is declared permanent, permanent and stationary, whichever is earlier. For the purposes of this subdivision, “net salary” means the amount of salary the employee receives after federal income tax, state income tax, and the employee’s retirement contribution has been deducted from the employee’s gross salary.

(2)

(b)An employee
Notwithstanding the above 52-week limitation, an employee described by in subdivision (a) whose injuries are burn-related may receive the benefit described in paragraph (1) in subdivision (a) for a period not to exceed 156 weeks after the date of the occurrence of the injury or illness or until the date the injury or illness is declared permanent, permanent and stationary, whichever is earlier.

(c) For purposes of this section, “net salary” means the amount of salary received after federal income tax, state income tax, and the employee’s retirement contribution has been deducted from the employee’s gross salary.

SECTION 1.Section 42400.7 of the Health and Safety Code is amended to read:

42400.7.

(a) The recovery of civil penalties pursuant to Section 39674, 42401, 42402, 42402.1, 42402.2, 42402.3, 42402.4, or 42402.7 precludes prosecution under Section 42400, 42400.1, 42400.2, 42400.3, 42400.3.5, or 42400.4 for the same offense. When a district refers a violation to a prosecuting agency, the filing of a criminal complaint is grounds requiring the dismissal of any civil action brought pursuant to this article for the same offense.

(b) If the pending civil action described in subdivision (a) includes a request for
injunctive relief, that portion of the civil action shall not be dismissed upon the filing of a criminal complaint for the same offense.

SEC. 2.Section 42402 of the Health and Safety Code is amended to read:

42402.

(a)Except as provided in Sections 42402.1, 42402.2, 42402.3, 42402.4, and 42402.7, any person who violates this part, any order issued pursuant to Section 42316, or any rule, regulation, permit, or order of a district, including a district hearing board, or of the state board issued pursuant to Part 1 (commencing with Section 39000) to Part 4 (commencing with Section 41500), inclusive, is strictly liable for a civil penalty of not more than five thousand dollars ($5,000).

(b)(1)Any person who violates any
provision of this part, any order issued pursuant to Section 42316, or any rule, regulation, permit or order of a district, including a district hearing board, or of the state board issued pursuant to Part 1 (commencing with Section 39000) to Part 4 (commencing with Section 41500), inclusive, is strictly liable for a civil penalty of not more than ten thousand dollars ($10,000).

(2)(A)If a civil penalty in excess of five thousand dollars ($5,000) for each day in which a violation occurs is sought, there is no liability under this subdivision if the person accused of the violation alleges by affirmative defense and establishes that the violation was caused by an act that was not the result of intentional conduct or negligent conduct.

(B)Subparagraph (A) shall not apply to a violation of federally enforceable requirements that occur at a Title V source in a
district in which a Title V permit program has been fully approved.

(C)Subparagraph (A) does not apply to a person who is determined to have violated an annual facility emissions cap established pursuant to a market based incentive program adopted by a district pursuant to subdivision (b) of Section 39616.

(c)Any person who owns or operates any source of air contaminants in violation of Section 41700 that causes actual injury, as defined in subdivision (d) of Section 42400, to the health and safety of a considerable number of persons or the public, is liable for a civil penalty of not more than fifteen thousand dollars ($15,000).

(d)Each day during any portion of which a violation occurs is a separate offense.

SEC. 3.Section 42402.7 is added to the Health and Safety Code, to read:

42402.7.

(a)For purposes of this section, the following terms have the following meanings:

(1)“Actual injury” means any physical injury that, in the opinion of a physician, requires medical treatment involving more than a physical examination.

(2)“Corrective action” has the same meaning as in Section 42400.2.

(3)“Person” means a Title V source that is a petroleum refinery, petrochemical plant, or fossil-fuel-burning, electricity-generating power plant.

(4)“Serious threat to the health or welfare of the public” means either of the following:

(A)A violation involving a release of an air contaminant that causes actual injury to one or more members of public.

(B)A violation of Section 41700 that affects 25 or more people on any day.

(b)(1)A person shall be strictly liable for a civil penalty of not more than thirty thousand dollars ($30,000) per day if that person emits an air contaminant in violation of this part or any rule, regulation, emissions limitation, permit, or order of a district or district hearing board and the violation presents a serious threat to the health or welfare of the public. If that person has had two or more prior serious violations within the 36 months prior to the date of the violation, the civil penalty shall not be more than one hundred thousand dollars ($100,000) per day.

(2)The civil penalty assessed pursuant to this subdivision shall not apply if the violation is caused by unforeseen and unforeseeable criminal acts, acts of war, acts of terrorism, or civil unrest.

(c)A person shall be assessed a fine of not more than seventy-five thousand dollars ($75,000) per day if that person negligently emits an air contaminant in violation of this part or any rule, regulation, emissions limitation, permit, or order of a district or district hearing board and the violation presents a serious threat to the health or welfare of the public. If that person has had two or more prior serious violations within the 36 months prior to the date of the violation, the fine shall not be more than two hundred fifty thousand dollars ($250,000) per day.

(d)A person shall be liable for a civil penalty of not
more than one hundred twenty-five thousand dollars ($125,000) per day if that person knew of the emission of the air contaminant and failed to take corrective action within a reasonable period of time under the circumstances and the violation presents a serious threat to the health or welfare of the public. If that person has had two or more prior serious violations within the 36 months prior to the date of the violation, the civil penalty shall not be more than three hundred seventy-five thousand dollars ($375,000) per day.

(e)A person shall be liable for a civil penalty of not more than two hundred fifty thousand dollars ($250,000) per day if that person emits an air contaminant that is willful and intentional and the violation presents a serious threat to the health or welfare of the public. If that person has had two or more prior serious violations within the 36 months prior to the date of the violation, the fine shall not be more than
five hundred thousand dollars ($500,000) per day.

(f)Each day during any portion of which a violation occurs is a separate offense.

(g)If a higher penalty or fine described in this part may be applied to a violation described in this section, that higher penalty or fine shall be used as the maximum.

(h)The provisions of Section 42403 shall apply to this section.

SEC. 4.Section 42403 of the Health and Safety Code is amended to read:

42403.

(a) The civil penalties prescribed in Sections 39674, 42402.7, 42401, 42402, 42402.1, 42402.2, and 42402.3 shall be assessed and recovered in a civil action brought in the name of the people of the State of California by the Attorney General, by any district attorney, or by the attorney for any district in which the violation occurs in any court of competent jurisdiction.

(b) In determining the amount assessed, the court, or in reaching any settlement, the district, shall take into consideration all relevant circumstances, including, but not limited to, the following:

(1)
The extent of harm caused by the violation.

(2) The nature and persistence of the violation.

(3) The length of time over which the violation occurs.

(4) The frequency of past violations.

(5) The record of maintenance.

(6) The unproven or innovative nature of the control equipment.

(7) Any action taken by the defendant, including the nature, extent, and time of response of the cleanup and construction undertaken, to mitigate the violation.

(8) The financial burden to the defendant.

SEC. 5.Section 42405.5 of the Health and Safety Code is amended to read:

42405.5.

(a) If any state or local government agency provides assistance in the investigation, data collection, or monitoring, preparation, or prosecution of an action to recover civil penalties pursuant to Section 42401, 42402, 42402.1, 42402.2, 42402.7, and that assistance is provided in coordination with the state board or a district prosecuting the action, that agency shall be reimbursed out of the proceeds of the penalty collected for its costs and expenses incurred in providing the assistance.

(b) If the penalty collected is
insufficient to fully reimburse the state board or district for the costs and expenses incurred in preparing and prosecuting the case and another agency or agencies for the costs and expenses incurred in assisting in the case, the amount collected shall be prorated among the state board or district and the assisting agency or agencies, on the basis of costs and expenses incurred by each.

(c) This section does not apply where there is an express agreement between the state board or district and another agency or agencies regarding reimbursement for assistance services and expenses.

SEC. 6.

If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.